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Introduction

Contents

Introduction

The past fifteen years have witnessed an explosion of interest in reconciliation and accountability for human rights violations so that in 1998 a columnist for a mainstream American newspaper reflected, 'There is no more important new subject on the international agenda than the necessity of balancing the human need for justice and retribution with the states interest in stability and reconciliation' (Little 1999:65).

Reconciliation and the redress of injustices is a pressing concern for a wide range of stakeholders, but these questions have particular and significant implications for forced migrants, including refugees and internally displaced persons (IDPs). The success of durable solutions, especially return, often depends on reconciliation and reparations programmes designed to confront the injustices at the root of displacement, restore access to homes and properties, stimulate development and ensure that the displaced can live as equal citizens in relative peace with their neighbours. This is clearly a tall order for legal principles and norms that remain politically controversial and lack consistent, reliable enforcement mechanisms. Yet, interest in reconciliation and reparations has been sustained by the view that 'peace and justice are, if not indivisible, at least close associates' (Shawcross 2000: 187). Whether through truth and reconciliation commissions, tribunals, financial compensation, or a combination of these and other means, there is a popular, albeit debatable, conviction amongst donors and policymakers that confronting and responding to past injustices is essential to stabilising emerging democracies and establishing the rule of law. Researchers and practitioners are also keenly interested in how reparations can be used not only to repair past wrongs, but also to deter future violations.

This guide is not intended to provide a comprehensive discussion of reparations and reconciliation, which are both highly complex and contested concepts. Instead, the goal of this guide is to highlight some of the key legal, political, technical, ethical and development issues raised by reconciliation and redress as they relate to forced migration, with a focus on conflict-induced displacement. This guide is intended to help the reader navigate the extensive literature on reparations, reconciliation, coexistence and forced migration, and identify areas where additional research is required. Although some cases are briefly discussed for illustrative purposes, it is important to note that as this guide aims to provide a succinct introduction to the key issues, a full comparative analysis of the many relevant cases is not possible. It is also important to note that while efforts have been made to provide as many electronic references as possible, a significant amount of the most valuable literature on these issues is unfortunately not available on-line. Please refer to the bibliography at the end of this guide for suggestions regarding print literature. As the guide is a work in progress, any recommendations for additional websites or literature will be warmly welcomed.

Definitions

Definitions of reparations and reconciliation are contested at best; at worst, they are murky or esoteric. The definitions of reparations set out under international law are comparatively straight forward. The 1928 Permanent Court of International Justice
Chorzów Factory ruling lay down the basic remedial norms for violations of international law. The court ruled that 'reparation must, so far as possible, wipe out all the consequences of the illegal act and re-establish the situation that would, in all probability, have existed if that act had not been committed' (Shelton 2002: 835). Legal definitions of reparations are discussed in the International Law Commission (ILC) Articles on State Responsibility; the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Violations of International Human Rights and Humanitarian Law; and the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons. Under international law, reparation encompasses three main types of remedy: restitution, compensation and satisfaction. The goal of restitution is to restore the conditions that existed prior to a violation, and often involves the return of homes, artefacts or land. The 'first form of reparation', restitution is required unless it is 'materially impossible' or 'involves a burden out of all proportion to the benefit deriving from restitution instead of compensation' (Shelton 2002: 849). Compensation involves monetary payment for material or moral injury, while satisfaction addresses non-material injuries and may involve official apologies; assurances of non-repetition of the offence; judicial proceedings; and truth and reconciliation commissions.

However, reparation is not simply a legal concept. It also has deep roots in religious, ethical and political discourse. Outside of the legal framework, definitions of reparation, restitution and redress have become particularly muddled. For example, scholar Elazar Barkan's definition of restitution has significant overlaps with the legal definition of reparation, but is much broader than the concept of restitution under international law. In his influential text
The Guilt of Nations: Restitution and Negotiating Historical Injustices, Barkan offers a comprehensive notion of restitution as the 'entire spectrum of attempts to rectify historical injustices' (Barkan 2001: xix). Barkan (2001: xviii) contends that the legal tools of remedy, that is, restitution, compensation and satisfaction, 'are all different levels of acknowledgement that together create a mosaic of recognition by perpetrators for the need to amend past injustices'. Although broad, this conceptualisation is salient because it encompasses the diverse yet interrelated approaches available to remedy injustice, including high-level legal initiatives such as trials and property restitution mechanisms, political efforts such as apologies and truth commissions, and grassroots reconciliation and coexistence projects.

There are a plethora of definitions of reconciliation, ranging from modest depictions of reconciliation as the establishment of social relations that enable the members of a divided community to coexist peacefully, to more ambitious associations of reconciliation with forgiveness and friendship. Reconciliation may be described in psychological terms, and undoubtedly has different meanings and associations depending on cultural context. The word has 'powerful religious overtones, including intimations of purification and cleansing', and 'it is undeniable that Christian conceptions of reconciliation are deeply implicated in the South African context', which has had a profound influence on the development of national reconciliation programmes elsewhere in the world (Dwyer 1999: 82). One of the most influential scholars of reconciliation, Jean Paul Lederach, highlights the contradictions and paradoxes inherent in the notion of reconciliation. Lederach (1997) writes,

'Reconciliation can be seen as dealing with three specific paradoxes. First, in an overall sense, reconciliation promotes an encounter between the open expression of the painful past, on the one hand, and the search for the articulation of a long-term, interdependent future, on the other hand. Second, reconciliation provides a place for truth and mercy to meet, where concerns for exposing what has happened and for letting go in favour of renewed relationship are validated and embraced. Third, reconciliation recognises the need to give time and place to both justice and peace, where redressing the wrong is held together with the envisioning of a common, connected future'.

Please see section 4 for a more detailed discussion of reconciliation issues.

Studying reparations, reconciliation and forced migration

Researchers have approached the questions surrounding forced migration, reconciliation and reparations from a wide range of disciplinary perspectives, including law, economics, history, politics, psychology, anthropology, philosophy, geography and sociology. Many scholars have utilised a regional or comparative approach, contrasting contemporary and historical efforts to promote reconciliation and redress historical wrongs, both in post-conflict settings and in more stable political contexts. A significant body of literature is now emerging that anticipates how reconciliation and reparations initiatives may play a role in moving entrenched disputes, such as the Israeli-Palestinian conflict, towards resolution. In some cases, these studies directly address the issue of reparations for returning refugees and IDPs as an essential aspect of peace processes (for e.g. International Crisis Group 2005).

Most of the research that explicitly examines the connection between forced migration and redress focuses on housing and property restitution from a socio-legal perspective (for e.g. Leckie 2003). However, there is also a burgeoning collection of work on return, reintegration and reconciliation in post-conflict communities (for e.g. Minow and Chayes 2003). Much of this research looks at former combatants, particularly child soldiers. Although these studies are not typically focused on questions of forced migration, they may nonetheless be of interest to researchers in the field of refugee studies, as many of the combatants involved in reintegration and reconciliation programmes were themselves displaced, and were often involved in perpetuating the forced migration of civilians. Human rights advocates, psychologists and anthropologists have often taken the lead on
this research agenda, which has yielded particularly interesting studies on the use of local cultural resources to enable reconciliation and reintegration (for e.g. Honwana 1998, Nordstrom 1997).

Many studies on reparations and reconciliation have been conducted by advocacy or humanitarian organisations, with a view to improving individuals' access to accountability mechanisms and the efficacy of reconciliation interventions. In this vein, the comparative study of reparations and reconciliation processes is increasingly used to identify practices that may help or hinder the resolution of displacement situations and the establishment of stability in transitional environments. A significant proportion of the research carried out in this field has concentrated on the macro-level analysis of the institutional arrangements used to facilitate reconciliation and reparations. However, there is also a growing body of critical literature on the disjoint between national-level reconciliation and justice programmes and the concerns facing the survivors of human rights violations at the grassroots (for e.g. Stover and Weinstein 2004). It is increasingly recognized that more research is needed that examines the perspectives of individual survivors, and addresses questions of cultural context and gender. Future research may also beneficially address the long-term impact of reconciliation and redress programmes on the survivors of human rights abuses, including refugees and IDPs. Research with the survivors of human rights violations raises important ethical questions, which will require continued consideration and navigation as the research agenda matures.

Websites

Center for Human Rights and Conflict Resolution at Tuft's University Fletcher School of Diplomacy
http://www.chrcr.org

Key actors and organisations

In addition to national governments and the survivors of human rights violations, key actors in redress and reconciliation processes include national, regional and international courts, ad hoc claims commissions, truth and reconciliation commissions, donor agencies, UN institutions and other regional and international organisations. In particular, the International Organisation for Migration (IOM) has been responsible for administering various major restitution and compensation commissions, and offers expert advice to several national claims bodies. The work of the former UN Special Rapporteur on Restitution and the UN Special Rapporteur on Housing and Property Restitution for Refugees and Displaced Persons helped clarify the rights and responsibilities held by the victims and perpetrators of displacement and other human rights violations. Scholars have been instrumental in articulating many of the legal, political and normative concepts which guide the pursuit of reparations and reconciliation, and have also played a key role in documenting human rights abuses and gathering the information necessary to support reparations claims. In addition to these efforts, the media and non-governmental organisations (NGOs) have mobilised popular support for accountability initiatives and raised issues of historical injustice onto the international agenda. NGOs such as the Norwegian Refugee Council and Redress provide information to the victims of human rights abuses, including refugees, on the avenues open to them to obtain reparations. Meanwhile, groups such as the International Center for Transitional Justice (ICTJ) offer advice on the establishment, operation and evaluation of mechanisms such as tribunals and truth and reconciliation commissions. Working in cooperation with the UN Special Rapporteur on Housing and Property Restitution for Refugees and Displaced Persons, the Centre on Housing Rights and Evictions (COHRE) played a leading role in generating policies and improving practice on housing and property restitution for the displaced.

Historical cases

Historically, individuals have not been recognised as subjects under international law, and have been unable to access legal redress for state-sponsored abuses such as forced displacement. The individual's right to reparations evolved out of the post-World War II human rights regime, which firmly established the individual as a bearer of rights and duties under international law. Barkan points to West Germany's efforts to compensate Holocaust survivors as the first example of a large-scale, modern reparations programme. Since 1952, Germany's reparations programme has involved the transfer of over 60 billion dollars from Germany to Israel and individual survivors (Bazyler 2002: 38). In the agreement reached between Germany, Israel and various Jewish organisations, the Jewish negotiators acknowledged Germany's attempt to atone for its crimes, but did not forgive them. This compromise entrenched a place for atonement in politically negotiated reparations processes, but pragmatically recognised that forgiveness and reconciliation cannot be compelled.

The fledgling restitution movement largely stagnated until the early 1990s when class action suits were filed in American courts against three prominent Swiss banks for their complicity in the Holocaust. This sparked renewed interest in the question of amending historical
injustices, and launched several complex reparations cases onto political agendas worldwide, including compensation for Korean 'comfort women' and Japanese North Americans interned during the Second World War, and apologies and the return of sacred lands to indigenous peoples in Canada and New Zealand. The longstanding debate on reparations for slavery was also reinvigorated in the United States, while reparations for post-colonial states were discussed at international forums including the World Conference Against Racism. By the late 1990s, Dwyer (1999: 81) suggests, a 'global frenzy to balance moral ledgers' was brewing in courtrooms, NGO offices, legislatures and newsrooms from Zurich to Seoul. This was supported by the establishment of internationally-supported tribunals and claims commissions through which the victims of human rights violations, including refugees and IDPs, could pursue their claims. Several excellent historical and comparative studies have been completed on Germany's reparations for Holocaust survivors, and the subsequent Swiss Banks restitution campaign (for e.g. Bazyler 2002).

Refugees have long been intertwined with the law and politics of redress. Most cases have focused on restitution or compensation for refugees from their state of origin, however, various legal scholars have also addressed compensation for states of asylum from countries of origin (for e.g. Lee 1986, Garry 1998). Under the Swiss Banks' Holocaust settlement, five classes of eligible claimants were identified, including a 'Refugee Class'. This class consisted of individuals who attempted to gain asylum in Switzerland from the Nazis and were either denied entry or, after gaining entry, were refouled or mistreated. This little-known case is one of the only examples of a state of asylum acting on their responsibility to provide restitution for refouled refugees.

Some of the most important political statements on reparations for refugees arose after some 726,000 Palestinians were displaced through the establishment of the Israeli state (Fischbach 2003: xxi). In 1948, the UN Mediator on Palestine (1948) wrote, 'The right of the Arab refugees to return to their homes in Jewish-controlled territory at the earliest possible date should be affirmed by the UN, and their repatriation, resettlement and economic and social rehabilitation, and payment of adequate compensation for the property of those choosing not to return, should be supervised and assisted by the UN'. UN Member States echoed Bernadotte's recommendations in General Assembly Resolution 194 of 1948, which resolves that 'refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date', and that 'compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible'. Although never implemented, these provisions have been repeated in numerous General Assembly resolutions, and formed the backbone of calls for restitution and compensation in other refugee cases.

The genesis of international and scholarly focus on reconciliation is comparatively more recent. Principally, research and policy initiatives on reconciliation were galvanised with the creation of the Truth and Reconciliation Commission (TRC) for South Africa. The controversial founding of the South African TRC was followed by the establishment of truth and reconciliation commissions in various Latin American countries that were emerging from dictatorships. The focus on national-level reconciliation commissions also sparked greater interest in grassroots reconciliation and coexistence initiatives. Many of these early initiatives were documented and analysed by anthropologists, political scientists and NGO representatives in often short-term research projects with specific programmatic goals.

Eizenstat, S. (2003) 'The Work of an International Negotiator in Restitution Cases and the Legacy of World War II', lecture given as part of the
Beyond History and Memory seminar series, Carnegie Council on Ethics and International Affairs, New York, 6 May 2003.
http://www.cceia.org/resources/transcripts/962.html